The Fair Labor Standards Act (FLSA) provides a process by which an employee or a small group of employees can sue for unpaid wages, often in the form of overtime, and can also claim to be representing all others "similarly situated."
This process, called a "collective action," is a form of class action, whereby the original claimants seek to send notices to a large group of current and/or former employees, offering these persons the opportunity to "opt in" (i.e., join) to the case seeking allegedly due but unpaid wages.
These collective actions are burdensome to employers because the standard used in many courts allowing notices to large groups requires the original claimants to make only a very minimal showing of "similarly situated" for others to be included in the initial notice. In many of these cases, the early proceedings over the recipients of the "opt-in" notices will determine practically the outcome of the case – the larger the group of recipients, the more pressure is placed on the employer to settle and avoid costly litigation.
In a recent ruling, the Sixth Circuit Court of Appeals has modified the standard. The new standard requires a claimant to meet a more robust standard of "similarly situated" before allowing a notice to a large group of current and/or former employees.
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